Page:The Green Bag (1889–1914), Volume 20.pdf/534

 ENFORCEMENT OF LAW decisions of the same tribunal upon the same point, from which it may choose at will, or in the form of what one might term soft spots in the law, spots where the lines are so drawn by the adjudicated cases that the court may go either way, as the ethical exigencies of the cause in hand require, with no apparent transgression of what purports to be a hard and fast rule. Thus we have a great deal of freie Rechtsfindung in America, while disclaiming it in theory, and that too in a way that is unhappily destructive of certainty and uniformity. Not only do lawyers and law-writers perceive this situa tion, but it is coming to be understood, in an age of publicity, by the people at large. Necessary as it is to some extent in the period in which we find ourselves, the method by which it is carried out in this country is rightly felt to be unlegal. It injures respect for law. If the court does not respect the law, who will? There is no one cause of the current attitude toward law. But this judicial evasion and warping of the law, in the endeavor to secure in practice a freedom of judical action not conceded in theory, is a prime cause. Law will doubtless always continue to be "in a process of becoming "; it must be " as variable as man himself."1 " Social life," says Wundt, " like all life, is change and development. Law would be neglecting one of its most important functions if it refused to meet the demands of this ceaseless evolu tion."2 Hence legal principles after all can only furnish a broad outline. Hence all attempts to tie the law down tight lead in the end to fictions, or spurious interpreta tion, or the rise of a new system of rules of assumed higher validity, or equitable appli cation. Hence in an epoch of matured law, when growth takes place by legislation, when doctrines are stable and principles fixed and rules determined, when the ordinary mitigating agencies of interpretation and judicial law-making have ceased to be effect ive, equitable application is but an assertion 1 Wundt, Ethik (2d ed.), 566. ' Ibid. 581.

40?

of the element of discretion, of reason, of equity in its wider sense, inherent in all law. Of course the other side of this is that con formity to the moral sense of the community is only one of the ends of the administration of justice according to law. Certainty is another and a no less important end; and certainty is wrecked by any considerable degree of latitude for equitable application. All legal history shows a struggle between the two elments in law, the technical and the discretionary. When the equitable element is dominant, practice soon crystallizes into hard and fast rules or doctrines of equity, under pressure of the demand for certainty. When the legal element is dominant, there is soon an equitable revolt or an insidious undermining in the interpretation or appli cation of rules, under pressure of the demand for justice. The phenomenon today, there fore, is entirely normal. The discretionary element, headed off by the cessation of opportunity for judicial law-making, has broken out in another place. Nor is equitable application of rules a novel condition in our own legal history. In one other period of Anglo-American law, at the maturity of the old common law, just before Coke gave it its classical form, just before the establishment of equity under Elizabeth and James I, to be followed soon by the rise of the law mer chant, relieved the pressure, we find com plaint that the judges did not apply rigidly the decisions in the Year Books, but were wont to adjudge " as the circumstance of the case doth them move."1 I have endeavored to develop the reasons of and the arguments for equitable applica tion of law at some length because' to an audience of common-law lawyers the case against it does not need to be argued. Occasionally common-law judges have been found who frankly argued for something of the scrt, always, however, with reference to wide powers in the jury.2 For the most 1 Starkey's England (temp. Henry VIII), limited in Maitland, English Law and the Renaissance, note n. tinguished Persons (ed. of 1880), 314; Judge Chalmers in 7 Law Quart. Rev. 19.
 * e.g. Erie, C. J., in Senior's Conversations with Dis